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SAMOA
INTERNATIONAL BANKING ACT 2005
Arrangement of Provisions
PART 1
PRELIMINARY
1. Short title and
commencement
2. Interpretation
3. Meaning of ―fit and proper‖
PART 2
LICENSING OF
INTERNATIONAL BANKS
4 Unlicensed international
banking prohibited
5. Inspector of International
Banks
6. Regulatory Codes
7. Directions
8. Licences
9. ―A‖ class international
banking licence
10. ―B1‖ and ―B2‖ class
international banking
licences
11. Physical presence in Samoa
12. Approval to carry on
domestic banking business
13. Application for licence
14. Minister may grant or refuse
licence
15. Licence fees
16. Licence renewal
17. Transfer of a licence
18. Shares not to be issued or
transferred without approval
19. Appointment and Approval
of directors and chief
executive
20. Disqualification to be
employed by licensee
21. Certain approvals required
22. Insurance policy
23. Prohibited activities
24. Name to contain word
―bank‖
25. Notification of changes
PART 3
ACCOUNTING RECORDS,
BUSINESS INSPECTION
AND AUDITS
26. Keeping of accounting
records
27. Annual report and audit
28. Quarterly statements and
other returns
29. Inspection
30. Supply of information
31. Central Bank controls
32. Power of search
33. False or misleading
information
34. Official examinations
35. Annual audit
36. Duties of auditor
37. Preservation of
confidentiality
38. Breach of confidentiality
39. Breach of confidentiality
by officer or employee
deemed to be breach by
licensee
PART 4
TAXATION
40. Profits and dividends
41. Exemption from stamp
duty
International Banking Act 2005 2
42. Exemption from currency
and exchange control
PART 5
SUSPENSION,
CANCELLATION AND
OTHER ENFORCEMENT OF
LICENCE CONDITIONS
43. Enforcement of examination
findings
44. Powers of the Minister
45. Minister may apply to the
Court
46. Surrender of licence
47. Appeals
PART 6
MISCELLANEOUS
48. Protection of the terms
―bank‖ and ―international
bank‖
49. General penalty for offence
50. Application of
International Companies
Act to winding up
51. Civil remedies not affected
52. International banking not
an authorised trustee
investment
53. No other business licence
required
54. Choice of measures
55 Regulations
56. Immunity
57. Procedure where none laid
down
58. English the authentic text
59 Repeal of Off-shore
Banking Act 1988
60. Transitional
61. Consequential amendments
INTERNATIONAL BANKING ACT 2005 2005 No.8
AN ACT to provide for the licensing and supervision of
International Banks. [Assent date: 22 April 2005]
[Commencement date: 25 May 2005]
BE IT ENACTED by the Legislative Assembly of Samoa
in Parliament assembled as follows:
PART 1
PRELIMINARY
1. Short title and commencement – (1) This Act may
be cited as the International Banking Act 2005.
(2) This Act commences or any part or section thereof
on the day or days nominated by the Minister.
(3) Notice of commencement of this Act or any part or
section thereof shall be published in Samoan and English in
the Savali and one other newspaper circulating in Samoa.
2. Interpretation – In this Act, unless the context
otherwise requires:
International Banking Act 2005
3
―accounting records‖ in relation to a company includes,
whether maintained in Samoa or elsewhere, such
working papers and other documents and records
kept in a computer, on magnetic tape or by means of
any other storage device used in electronic data
processing by or on behalf of the company, as are
necessary to explain the methods and calculations by
which accounts of the company are made up;
―accounts‖ means profit and loss accounts and balance
sheets, and includes notes (other than directors’
reports) attached to, or intended to read with, any of
those profit and loss accounts or balance sheets;
―approved auditor‖ means a chartered accountant,
certified public accountant or other professionally
qualified accountant who has been approved by the
Inspector and who is a registered company auditor
under the International Companies Act 1988;
―authorised person‖ means any person authorised by the
Inspector under section 5(6);
―banking business‖ means the business of banking in all
its customary forms, branches and departments
including that of a savings bank and without limiting
the generality of the foregoing also includes:
(a) borrowing, receiving or taking up money at
interest or otherwise on current account,
savings account, deposit account or other
account and which according and subject to
arrangement is repayable on the cheque, draft,
order or authority of the customer;
(b) lending, giving credit at interest or otherwise with
or without security to any person;
(c) discounting, buying, selling and dealing in bills of
exchange, promissory notes, coupons, drafts,
bills of lading, warrants, debentures,
certificates, script, hire purchase agreements,
and other instruments and securities whether
transferable or negotiable or not;
(d) granting and issuing letters of credit and circular
notes;
(e) buying, selling and dealing in bullion and specie; (f) dealing in foreign or overseas exchange;
(g) acquiring or holding or issuing on commission,
debentures, debenture stock, bonds,
obligations, securities and investments of all
kinds;
International Banking Act 2005
4
(h) negotiating of loans and advances;
(i) becoming surety for the payment of money or
performance of contracts or obligations by any
person;
(j) receiving money and valuables on deposit or for
safe custody or otherwise;
(k) collecting and transmitting money and securities;
(l) managing property and transacting all kinds of
agency business commonly transacted by
bankers; or
(m) carrying on such other business outside the
customary scope of the business of banking as
the Minister may from time to time authorise
or approve in writing;
―Central Bank‖ means the Central Bank of Samoa
established under the Central Bank of Samoa Act
2015;
―chief executive‖ in relation to a company, means a
person who, alone or jointly with other persons, is
responsible under the immediate authority of the
directors for the conduct of the business of the
company;
―company‖ means a body corporate with legal
personality recognised for most purposes as separate
from that of its members, constituted, incorporated or
formed under the laws of Samoa or in accordance
with the laws of any other country or place,
including public and private corporations;
―controller‖ in relation to a company means:
(a) a managing director or chief executive of that
company or of any other company of which
that company is a subsidiary; or
(b) a shareholder controller or an indirect controller;
―Court‖ means the Supreme Court;
―director‖ means any person occupying the position of
director (by whatever name called) of a company and
includes any person in accordance with whose
directions and instructions the directors of a
company are accustomed to act or who has been held
out by a company to be a director;
―dollar‖ or ―$‖ means a unit of the currency of the
United States of America;
―domestic banking business‖ means banking business
transacted by, for, and in respect of residents of
Samoa, but does not include any company
International Banking Act 2005
5
incorporated or registered under the International
Companies Act 1988, any trustee company registered
under the Trustee Companies Act 1988, any
international trust registered under the International
Trusts Act 1988, any international partnership or
limited partnership registered under the International
Partnership and Limited Partnership Act 1998 or any
segregated fund international company registered
under the Segregated Fund International Companies
Act 2000;
―financial interest‖ means an investment in the equity,
ownership or control of a company;
―fit and proper‖ has the meaning given in section 3;
―holder‖ means, in relation to a licence, the person to
whom it was issued;
―indirect controller‖ in relation to a company, means a
person in accordance with whose directions or
instructions any director of that company or of any
other body corporate of which that company is a
subsidiary, or any controller of that company is
accustomed to act;
―Inspector‖ means the Inspector of International Banks
appointed under section 5 and includes any person
acting under the Inspector’s authority;
―international banking business‖means any banking
business conducted in any currency, including the
currency of Samoa, transacted by, for or in respect of
non-residents and with the approval granted under
section 12, can include domestic banking business;
―Judge‖ means a Judge of the Supreme Court of Samoa;
―licence‖ means a licence granted under Part 2;
―licensee‖ means any company holding a current valid
licence under this Act;
―manager‖ in relation to a company means a person
other than a chief executive who, under the
immediate authority of a director or chief executive
of the company:
(a) exercises managerial functions; or
(b) is responsible for maintaining accounts or other
records of the company;
―Minister‖ means the Minister of Finance;
―Money Laundering Authority‖ means the Money
Laundering Authority appointed under the Money
Laundering Prevention Act 2007;
International Banking Act 2005
6
―non-resident‖ means a person not ordinarily resident in
and not domiciled in Samoa who does not engage in
a trade or business in Samoa, and includes any
company incorporated or registered under the
International Companies Act 1988, any trustee
company registered under the Trustee Companies
Act 1988, any international trust registered under the
International Trusts Act 1988, any international
partnership or limited partnership registered under
the International Partnership and Limited Partnership
Act 1998 or any segregated fund international
company registered under the Segregated Fund
International Companies Act 2000;
―officer‖ in relation to a licensee includes any director,
secretary or employee of the licensee;
―person‖ has the same meaning as provided in section 2
of the International Companies Act 1988;
―residence‖ means ordinary residence or usual place of
abode and the words ―to reside‖ or ―resident‖ shall
have corresponding meanings;
―shareholder controller‖ in relation to a company means
a person who, alone or with associates, is entitled to
exercise or control the exercise of 10% or more of
the voting power in general meeting of that company
or of any other body corporate of which that
company is a subsidiary;
―this Act‖ includes regulations made under this Act.
3. Meaning of “fit and proper” – For the purposes of
this Act, in determining whether a person is a ―fit and
proper‖ person, regard shall be had to all circumstances,
including that person’s:
(a) honesty, integrity and reputation;
(b) competence and capability; and
(c) financial soundness.
PART 2
LICENSING OF INTERNATIONAL BANKS
4. Unlicensed international banking prohibited –
(1) No person shall transact any international banking
business from within Samoa, whether or not such business is
carried on in Samoa, unless the person is the holder of a
valid international banking licence issued under this Part.
International Banking Act 2005
7
(2) A person commits an offence who, not being duly
licensed under this Part:
(a) acts as an international bank, whether on the
person’s own account, in partnership or
otherwise;
(b) holds himself or herself out as being licensed
or otherwise entitled to act as an international
bank;
(c) takes or uses any name, title, addition, or
description implying or likely to lead any
person to believe that the person is licensed
or otherwise entitled to act as an international
bank; or
(d) carries on business as an international bank’s
agent, or in any way advertises or holds
themselves out as an international bank’s
agent.
(3) In any proceedings in respect of an offence under
this section, the following is, in the absence of proof to the
contrary, sufficient evidence of the matters contained
therein:
(a) a certificate signed by the Minister to the
effect that at the time of the alleged offence
the defendant was not the holder of a valid
international banking licence; and
(b) a certificate signed by the Minister to the
effect that the defendant was at the time of
the alleged offence acting as an international
bank, or holding themselves out in such
capacity.
(4) A person convicted of an offence under this section
is liable to a fine not exceeding $50,000 or to imprisonment
for a term not exceeding 2 years, or to both.
5. Inspector of International Banks – (1) The
Inspector of International Banks shall be appointed by the
Minister for the regulation and supervision of licensees.
(2) There shall be appointed by the Minister such
Deputy Inspectors as are required for the purposes of this
Act.
(3) Subject to the control of the Inspector, a Deputy
Inspector has and may exercise the powers, duties and
functions of the Inspector under this or any other Act.
(4) The Inspector shall carry out the following:
International Banking Act 2005
8
(a) maintain a general review of international
banking practice in Samoa, including the
maintenance of adequate policies and
procedures for ―know your customer‖ and
anti-money laundering;
(b) whenever the Inspector thinks fit, conduct on-
site examinations and off-site supervision, by
way of the receipt of regular returns or in
such other manner as the Inspector thinks
necessary, of the affairs or business of any
licensee for the purpose of satisfying the
Inspector that the provisions of this Act are
being complied with and that the licensee is
in a sound financial position, and whenever
the Inspector thinks fit report to the Minister
the results of the examination;
(c) assist in the investigation of any offence
against the laws of Samoa which the
Inspector has reasonable grounds to believe
has or may have been committed by a
licensee or by any of its directors or officers
in their capacity as such;
(d) examine audited annual accounts, statements
and returns forwarded to the Inspector under
sections 27 and 28 and to report on them to
the Minister whenever the Inspector thinks
fit;
(e) to examine and make recommendations to the
Minister with respect to applications for
licences or licence renewals.
(5) In the performance of the Inspector’s functions
under this Act and, subject to section 37, the Inspector is
entitled at all reasonable times:
(a) to have access to such accounts, accounting
records, books, records, vouchers,
documents, cash and securities of any
licensee; or
(b) to request any information, matter or thing
from any person who the Inspector has
reasonable grounds to believe is carrying on
international banking business in
contravention of section 4; or
(c) to call upon any officer of the licensee for
such information and explanation; or
International Banking Act 2005
9
(d) to call upon the auditors of any licensee for
such auditor’s reports, working papers,
information or explanation; or
(e) to require that the auditor of a bank report to the
Inspector on the extent of the procedures of
the auditor in the examination of the annual
financial statements and may require that the
auditors enlarge the scope of that
examination or direct that any other particular
procedure be performed in any particular
case; or
(f) to require that the auditor make a particular
examination relating to the adequacy of the
procedures adopted by the bank for the safety
of its creditors and shareholders, or any other
examination as considered necessary by the
Inspector, –
as the Inspector may reasonably require for the purpose
of enabling the Inspector to perform the Inspector’s
functions under this Act;
(6) The Inspector, with the approval of the Minister,
may in writing authorise any other person to assist the
Inspector in the performance of the Inspector’s functions
under this Act.
(7) If it appears to the Inspector that there are
reasonable grounds for suspecting that an offence against
this Act has been or is being committed by any person the
Inspector may take such action as the Inspector considers
necessary in the interests of the depositors or other creditors
of the licensee concerned to preserve any assets held by that
licensee.
(8) A person who fails to comply with any requirement
under subsection (5) by the Inspector or any authorised
person commits an offence.
6. Regulatory codes – (1) The Minister may by
notice in writing make codes (in this Act referred to as
―regulatory codes‖) concerning the following, which shall
apply to international banks:
(a) the conduct of any business carried on by
international banks;
(b) the financial resources of international banks;
(c) the assets, liabilities and other matters to be
taken into account in determining an
International Banking Act 2005
10
international bank’s financial resources for
the purposes of the code;
(d) arrangements for the settlement of disputes;
(e) the keeping of accounts and other records,
their form, content, inspection and audit;
(f) the form and content of advertisements in
respect of any business carried on by
international banks;
(g) the giving of notice to the Minister or the
Inspector of the occurrence of such events as
may be specified in the code;
(h) the form and content of any information
required to be produced by international
banks to the Minister or the Inspector;
(i) the financial statements and returns which are
to be submitted to the Minister or the
Inspector;
(j) the display of notices and the provision of
information about the affairs of international
banks to the public at its offices and places of
business.
(2) A regulatory code may include a requirement that
the licensee to whom it applies shall comply with such rules,
regulations, codes or standards as are in force and made or
issued by the Minister.
7. Directions – (1) The Inspector may issue by notice
to all licensees directions in relation to the implementation
of the provisions of this Act.
(2) Failure by any licensee to comply with such
directions shall be taken into consideration when any action
is proposed to be taken under section 44.
8. Licences – (1) A person who desires to obtain a
licence under this Act shall make application to the Minister
in the prescribed form.
(2) The following kinds of licences may be granted
under this Act, namely:
(a) ―A‖ class international banking licences;
(b) ―B1‖ class international banking licences; and
(c) ―B2‖ class international banking licences.
(3) Except as otherwise specially provided herein, or in
any other Act, no person other than a company is eligible to
hold a licence under this Act.
International Banking Act 2005
11
9. “A” class international banking licence – (1) No
company shall apply for or obtain or be eligible to hold an
―A‖ class international banking licence under this Act unless
it has at all relevant times an aggregate of unimpaired capital
issued and paid up in cash and reserves of not less than 10
million dollars or an equivalent amount in a currency
approved by the Minister.
(2) An ―A‖ class international banking licence shall
license the holder to transact international banking business
through its business office in Samoa.
(3) An ―A‖ class international banking licence shall,
subject to this Act and payment of the prescribed annual
licence fee, be valid until cancelled or surrendered under
sections 44 and 46.
10. “B1” and “B2” class international banking
licences – (1) A ―B1‖ class international banking licence
shall, where the holder has at all relevant times an aggregate
of unimpaired capital issued and paid up in cash and
reserves of not less than 2 million dollars or an equivalent
amount in a currency approved by the Minister, license the
holder to:
(a) transact only such international banking
business as may be specified in the licence
through its business office in Samoa; and
(b) transact such specified business only in the
currency or currencies specified in the
licence.
(2) A ―B2‖ class licence shall, where the holder has at
all relevant times an aggregate of its capital issued and paid
up in cash and unimpaired reserves of not less than 250,000
dollars or an equivalent amount in a convertible currency
approved by the Minister:
(a) prohibit the holder from soliciting or
accepting any deposits of money or any other
valuable thing from the general public;
(b) licence the holder to accept deposits of
money or any other valuable thing only from
those persons or entities whose names are
listed in the undertaking accompanying the
licence application or application for renewal
of a licence under section 16;
(c) prohibit the holder from issuing to any
deposit or a cheque book, or providing any
cheque account facilities for the transaction
International Banking Act 2005
12
of the depositor’s international banking
business;
(d) license the holder to transact only such inter-
national banking business as may be
specified in the licence through its business
office in Samoa; and
(e) license the holder to transact such specified
business only in the currency or currencies
specified in the licence.
(3) A ―B1‖ or ―B2‖ class international banking licence
shall, subject to this Act, be valid for a period of 1 year from
the date of granting and may be renewed for further periods
of 1 year each.
(4) A licensee, whose ―B2‖ class licence is deemed to
continue in effect under section 60, shall, within 1 month of
the commencement date or such further period as the
Inspector may allow, file with the Inspector the undertaking
as to acceptance of deposits, referred to in subsection (2)(b).
(5) A person who fails to comply with subsection (4)
commits an offence and is liable on conviction to a fine not
exceeding $1,000 for every day during which the offence
continues.
11. Physical presence in Samoa – (1) All licensees are
required as a condition of their licences to establish and
maintain a physical presence in Samoa.
(2) In subsection (1), ―physical presence‖ means a place of
business maintained by the international bank and located at a
fixed address, other than a post office box or electronic
address in Samoa and at which location the bank:
(a) employs one or more individuals full-time;
and
(b) maintains operations and banking related
records.
(3) Despite subsection (1), any licensee, whose licence
is deemed to continue in effect under section 60, shall be
allowed a period of 270 days from the commencement of
this Act to comply with this section.
(4) The Inspector may, in the Inspector’s absolute
discretion, and upon sufficient cause being shown, extend
the period of time referred to in subsection (3) for a further
period of up to a maximum of 270 days.
12. Approval to carry on domestic banking business
– (1) A licensee may, at any time during the term of its
International Banking Act 2005
13
licence, apply to the Minister for permission to transact
domestic banking business by, for and in respect of residents
of Samoa.
(2) In determining whether to grant permission in
respect of an application made under subsection (1), the
Minister shall have regard to the public interest, the advice
of Central Bank and any other considerations, as the
Minister thinks fit to take into account.
(3) The Minister, on being satisfied that permission
should be granted under subsection (2), may grant
permission upon terms and conditions, as the Minister thinks
fit.
(4) No decision made by the Minister under this section
shall be reviewed or questioned in any Court by way of
appeal, prerogative writ or otherwise howsoever.
(5) This section has effect despite any restrictions to the
contrary in this Act, the International Companies Act 1988
or any other enactment.
13. Application for licence – (1) An application for a
licence under this Act shall be submitted to the Inspector
and shall be accompanied by the following:
(a) a certified copy of the Act, charter,
memorandum of association and articles of
association of the company, or other
document or documents by which the
company is constituted;
(b) the prescribed fee;
(c) evidence, in such form as the Minister or the
Inspector shall specify, verifying—
(i) that the laws of the jurisdiction under
which the company is incorporated have
been complied with;
(ii) the nature and character of the
company’s business and proposed
business;
(iii) the financial standing of the company;
(iv) the ultimate beneficial ownership of the
company; and
(v) that every person who is or is to be a
director, controller or manager of the
company is a fit and proper person to
hold that position;
(d) such references as the Minister or Inspector may
require;
International Banking Act 2005
14
(e) notice of an address for service within Samoa.
(2) In addition to the documents, information, and
evidence which shall accompany an application under
subsection (1), an applicant shall, if required to do so by the
Minister or the Inspector, provide the Inspector such
additional documents, information or evidence as the
Minister or the Inspector may require.
14. Minister may grant or refuse licence – (1) Where
an application for a licence is made, the Minister may, after
due consideration of that application and at the Minister’s
discretion, either grant a licence or reject the application.
(2) In making a decision under subsections (1), (3) and
(4) the Minister shall have regard to the public interest.
(3) Where the Minister grants a licence the Minister
may do so subject to terms and conditions, if any, as the
Minister thinks fit.
(4) If terms and conditions are imposed under
subsection (3) the Minister may, from time to time, vary or
revoke any of those terms or conditions or impose any
additional terms or conditions.
(5) The Minister need not give reasons for any decision
or direction made under this section.
(6) No decision or direction made by the Minister under
this section shall be reviewed or questioned in any Court by
way of appeal, prerogative writ or otherwise howsoever.
(7) An applicant for a licence shall have no right or
entitlement to the granting of a licence under this Act.
15. Licence fees – (1) Where an application for a
licence is refused, any application and licence fees shall be
totally non-refundable.
(2) If a prescribed annual fee has not been paid by the
licensee by the due date and the licensee continues to
transact international banking business, the amount shall be
recoverable together with the prescribed penalty in any
Court of competent jurisdiction as a debt due to the
Government.
(3) A licensee who makes default in paying a prescribed
annual fee imposed upon the licensee in respect of a licence
under this Act by the due date and the licensee continues to
transact international banking business, commits an offence
for which the licensee is liable upon conviction to a fine not
exceeding an amount equal to treble the amount of the
unpaid fee.
International Banking Act 2005
15
16. Licence renewal – (1) Subject to this section, an
application by a licensee for renewal of a licence granted
under section 10 must be received by the Inspector not later
than 2 months prior to the expiration of the licence.
(2) An application for a renewal of a licence shall be in
the prescribed form submitted to the Inspector and
accompanied by:
(a) particulars of any material changes or
alterations in the particulars submitted under
section 13(1) and (2) which have taken place
since the grant of the licence;
(b) in the case of B2 class licensees, the
undertaking as to depositor acceptance;
(c) such other additional documents, information
or evidence as the Minister or the Inspector
may require; and
(d) the prescribed annual licence fee, any penalty
fees and any late fee.
(3) Where an application for renewal of a licence is
made under subsection (1) the Minister may, after due
consideration of that application and at the Minister’s
discretion, either grant the renewal subject to such terms and
conditions, if any, as the Minister thinks fit or refuse the
application.
(4) If terms and conditions are imposed under
subsection (3), the Minister may, from time to time, vary or
revoke any of those terms or conditions or impose additional
terms or conditions.
(5) Where an application to renew a licence is made
after the time specified in subsection (1) and the licence has
not expired or has not been cancelled or revoked, the licence
may be renewed under this section, subject to payment of
such penalty as may be prescribed.
(6) Subject to section 47, a licensee shall have no right
or entitlement to renewal of a licence.
17. Transfer of a licence – (1) In this section, ―transfer
of control‖ in relation to a licensee, includes:
(a) the sale, transfer or other disposition
whatsoever of the shares in the capital of the
company, or any issue or allotment of any
new shares in the capital of the company or
the happening of any other matter or event
whatsoever, the effect of which is to transfer
International Banking Act 2005
16
directly or indirectly the effective ownership,
management and control of the company; and
(b) any of the events referred to in paragraph (a)
occurring to any holding company of the
licensee or any holding company of any
holding company of the licensee.
(2) Subject to subsection (3), a licensee shall not
transfer the licence or assign any interest therein and any
such purported transfer or assignment shall be void and of
no effect.
(3) A licensee shall not transfer control of the holder of
the licence without prior written approval of the Minister.
(4) A licensee has no right or entitlement to transfer a
licence.
18. Shares not to be issued or transferred without
approval – (1) Subject to this section, shares in or other
securities whatsoever of a licensee shall be issued and no
issued shares or beneficial interest in shares or other
securities of any licensee shall be transferred or disposed of
in any manner without the prior written approval of the
Inspector.
(2) In subsection (1), the reference to shares of any
licensee being transferred or disposed of, includes any
transfer or disposition that would result in any change in
beneficial ownership or control of the licensee.
(3) Despite subsection (1), the prior written approval of
the Inspector shall not be required where shares or other
securities are issued to existing shareholders on a pro-rata
basis.
(4) No bearer shares or share warrants to bearer shall be
issued by a licensee.
19. Appointment and Approval of directors and
chief executive – (1) A licensee shall at no time have less
than 2 directors who effectively direct the business and who
shall be natural persons.
(2) At least one of the directors of a licensee shall be a
resident of Samoa.
(3) A licensee shall, before the appointment of a
director or chief executive, apply to the Inspector for the
Inspector’s written approval of such appointment as a fit and
proper director or chief executive of the licensee.
(4) Approval granted under subsection (3):
International Banking Act 2005
17
(a) automatically lapses if the director or chief
executive becomes bankrupt or makes an
arrangement or composition with creditors or
is convicted of an offence involving
dishonesty; and
(b) may be revoked by the Inspector.
(5) Despite subsections (1) and (2), a licensee, whose
licence is deemed to continue in effect under section 60, is
allowed a period of 270 days from the commencement date
of this Act to comply with those provisions.
(6) The Inspector may, in the Inspector’s absolute
discretion, and upon sufficient cause being shown extend the
period of time referred to in subsection (5) for a further
period not exceeding 270 days.
20. Disqualification to be employed by licensee – (1) Subject to subsection (2), no person shall apply for or obtain
employment, or be eligible to be employed as a director,
manager, company secretary or employee of any licensee
under this Act, without the express prior approval in writing
of the Inspector if the person:
(a) has been a director of or directly or indirectly
concerned in the management of a licensee
that has had its licence cancelled in
accordance with section 44 or has been
wound up by a Court;
(b) has been sentenced by a Court in any country
to a term of imprisonment for an offence
involving dishonesty and has not received a
full pardon for that offence;
(c) is or becomes bankrupt or suspends payment
to or compounds with the person’s creditors;
or
(d) has been a director of a company that has
gone into bankruptcy or insolvency
proceedings other than voluntary winding up
proceedings:
PROVIDED THAT the approval of the Inspector shall be
granted only in exceptional cases where it would not be
contrary to the public interest and the said person would
otherwise be considered a fit and proper person to hold that
position.
(2) Nothing in this section prejudices, limits or restricts
the powers of the Inspector under section 19(3) in approving
International Banking Act 2005
18
the appointment of a director or chief executive of a
licensee.
(3) A person who contravenes subsection (1) commits
an offence and is liable on conviction to a fine not exceeding
$5,000.
(4) Sufficient evidence of a previous conviction, for the
purposes of proceedings under subsection (3), may be given
–
(a) by the production of the original judgement
of conviction purporting to be signed by the
judge or sealed by the Court who made or
issued it without evidence of such signature
having been made or of such seal having
been impressed or any other evidence relating
thereto; or
(b) by the production of a written copy or extract
of the judgement or conviction purporting to
be certified by an official of the Court who
made or issued the copy or extract without
evidence of such certificate having been
made or any other evidence relating thereto.
(5) Sufficient evidence of the absence of a full pardon,
for the purposes of proceedings under subsection (3), may
be given by certificate by an official of the Court in which
the conviction or judgement was issued stipulating that no
appeal is outstanding and that no pardon has been entered in
the records of the Court Registry in respect of the conviction
or judgement.
21. Certain approvals required – (1) A licensee shall
not, without the prior written approval of the Minister or the
Inspector:
(a) open outside Samoa a subsidiary bank,
branch office, agency or representative
office; or
(b) change its name.
(2) A licensee, licensed as an ―A‖ class international
bank under section 9 or licensed as a ―B1‖ class
international bank under section 10(1) shall not, without the
prior written approval of the Inspector, acquire or hold in
any one or more companies any financial interest exceeding
in value in the aggregate 15% of the paid up capital and
reserves of the licensee.
International Banking Act 2005
19
22. Insurance policy – The Minister or the Inspector
may require a licensee to effect a policy of insurance with an
approved insurance company against:
(a) the dishonesty of employees of the licensee;
(b) loss of documents; and
(c) such other risks as the Minister may stipulate,
–
in such amount and of such nature as the Minister or the
Inspector determine to be fit and proper, having due regard
to the nature and type of business carried on by the licensee;
and in the event that the insurance is withdrawn, cancelled
or not renewed, the licensee shall immediately notify the
Inspector and shall cease to carry on its business until the
insurance has been reinstated or replaced.
23. Prohibited activities – (1) A licensee shall not:
(a) hold a licence or operate under a name or use
a name which —
(i) so closely resembles or is identical to the
name of any company, firm, business
house or other financial entity or
institution, whether within Samoa or
elsewhere as is likely to mislead or
deceive;
(ii) is calculated to suggest falsely the
patronage of or connection with some
person or authority whether within
Samoa or elsewhere; or
(iii) is calculated to suggest falsely that such
licensee has a special status in relation to
or derived from the Government of
Samoa or has the official backing of or
acts on behalf of the said Government or
of any Ministry or agency or official
thereof or is recognised in Samoa as a
national or central bank;
(b) use or trade under any name other than the
name under which it is licensed under this
Act;
(c) transact any banking business with residents
of Samoa, unless authorised under section 12;
or
(d) transact any business otherwise than in
accordance with the terms and conditions of
its licence and this Act.
International Banking Act 2005
20
(2) A holder of an ―A‖ class international banking
licence or a ―B1‖ class international banking licence shall
not:
(a) grant any advance or credit facility against
the security of its own shares;
(b) accept any deposit of money or any other
valuable thing less than the amount which
shall from time to time be specified in the
licence;
(c) grant or permit to be outstanding unsecured
advances or unsecured credit facilities of an
aggregate amount in excess of $5,000 or of
one percent of the sum of the paid up capital
and unimpaired reserves of such licensee,
whichever is the greater, or give any financial
guarantees in excess of such amount without
proper security, or incur any other liability in
excess of such amount without proper
security—
(i) to or on behalf of any of its controllers,
directors, shareholders, beneficial
shareholders or beneficial owners,
whether such advances, facilities,
guarantees or other liabilities are
obtained by or on account of such person
jointly or severally; or
(ii) to or on behalf of any firm, partner-ship
or company in which the licensee, or any
one or more of its controllers, directors,
shareholders, beneficial shareholders or
beneficial owners, is interested as a
controller, director, partner, manager,
agent, shareholder, beneficial
shareholder or beneficial owner or to or
on behalf of any individual firm,
partnership or company of whom or of
which any of the licensee’s controllers,
directors, shareholders or beneficial
shareholders or beneficial owners is a
guarantor; and
(iii) for the purposes of this paragraph, a
controller, director, shareholder,
beneficial shareholder and beneficial
owner shall include the wife, husband,de
International Banking Act 2005
21
facto partner, father, mother, brother,
sister, son or daughter of such a person;
(d) acquire or hold in any company any financial
interest exceeding in value in the aggregate
60% of the paid up share capital and reserves
of the licensee; or
(e) acquire or hold any interest in any property,
chattels or real estate for any purpose other
than the carrying on of its international
banking business.
(3) A person who acts in contravention of this section
commits an offence and is liable on conviction to a fine not
exceeding $1,000 for each day during which the offence
continues.
24. Name to contain word “bank” – A licensee shall
use as part of its description or title the word ―bank‖ or one
or more of its derivatives in any language.
25. Notification of changes – (1) Despite the
provisions of any other Act, a licensee incorporated outside
Samoa or with its head office situated outside Samoa shall,
within one month after the making of an alteration in the act,
charter, memorandum of association, articles of association
or other document by which the licensee was constituted a
company, furnish to the Inspector particulars in writing of
the alteration verified by a statutory declaration made by a
senior officer of the company authorised to do so.
(2) A licensee shall forthwith notify the Inspector, in
writing, of any material change in the particulars set out in
the application for issue or renewal of a licence or in the
documents, information, or evidence accompanying that
application or in any documents, information, or evidence, if
any, given under section 13 or 16.
(3) Where a reconstruction of the licensee has occurred
or where the licensee makes an arrangement or enters into
an agreement for:
(a) the sale or other disposal of its business by
amalgamation or otherwise; or
(b) the purchase or other acquisition of the
business of any other licensee, –
such licensee shall forthwith, upon the occurrence of the said
reconstruction or upon the making or entering into of the said
arrangement or agreement, inform the Inspector in writing
thereof.
International Banking Act 2005
22
(4) Where any particulars or information is received
under this section, the Minister, having regard to the nature
of such particulars or information and notwithstanding the
fact that the company concerned is a licensee, may direct the
company, in writing, to apply for another licence within
such time and in such form as the Minister may determine.
(5) The issue of a directive under subsection (4) shall
not affect the validity of any licence subsisting at the date of
such directive and which was granted to the company to
which the said directive is issued.
(6) A licence to which subsection (5) refers is in force
until:
(a) it is cancelled by the Minister by order under
section 44; or
(b) another licence is granted to the company
concerned upon an application made under a
directive under subsection (4), and thereafter
the licence referred to in subsection (5)
ceases to have effect.
(7) A person who fails to comply with any of the
provisions of subsection (1), (2) or (3) or with any
requirement of the Minister under subsection (4) commits an
offence and is liable on conviction to a fine not exceeding
$1,000 for every day during which the offence continues.
PART 3
ACCOUNTING RECORDS,
BUSINESS INSPECTIONS AND AUDITS
26. Keeping of accounting records – (1) A licensee
shall:
(a) keep such accounting records as correctly
record and explain the international banking
transactions and financial position of the
company in relation to such business and
maintain such accounting records at a
location in Samoa notified to the Inspector;
(b) keep its accounting records in such a manner
as will enable true and fair accounts of the
international banking business of the
company to be prepared from time to time;
and
(c) keep its international banking business
records in such a manner as will enable the
International Banking Act 2005
23
accounts of the company to be conveniently
and properly audited.
27. Annual report and audit – A licensee shall submit
to the Inspector:
(a) within 6 months of the end of its financial
year, accounts duly audited under the
provisions of section 35; and
(b) an annual report, in such form as the
Inspector may approve, by December 31 of
each year.
28. Quarterly statements and other returns – (1)
Subject to subsection (3), a licensee shall, in relation to its
operations in or from within Samoa, submit to the Inspector,
in such form as the Inspector may approve, the following
statements:
(a) for holders of an ―A‖ class banking licence or of
a ―B1‖ class banking licence, not later than
21 days after the last day of the quarter to
which it relates a quarterly statement of assets
and liabilities, cash flow statement, profit and
loss statement and a return providing an
analysis of customer liabilities to the licensee
in respect of loans, advances and other assets
of the licensee at the close of the last business
day of that quarter;
(b) for holders of a ―B2‖ class banking licence, not
later than 21 days after the 6 month period to
which it relates a half-yearly statement of
assets and liabilities, cash flow statement,
profit and loss statement and a return
providing an analysis of customer liabilities
to the licensee in respect of loans, advances
and other assets of the licensee at the close of
the last business day of that half-yearly
period; and
(c) any other returns as may be prescribed in the
regulatory code issued under section 6.
(2) Subject to subsection (3), the Inspector may require
a licensee to submit to the Inspector any further information,
as may be necessary for the proper understanding of any
statement or return furnished by that licensee under
subsection (1), and the information is to be submitted within
the period and in a manner, as the Inspector may require.
International Banking Act 2005
24
(3) The Inspector may extend the period within which
any statement or return is required to be submitted under this
section where the Inspector considers that there are
circumstances justifying an extension.
(4) A licensee which fails to comply with subsection (1)
or (2), or with any requirement of the Inspector under it,
commits an offence and is liable on conviction to a fine not
exceeding $1,000 for every day during which the offence
continues.
29. Inspection – (1) The Inspector shall during the
normal office hours of the licensee, at the registered office
of the licensee or principal office of the licensee, have the
right to inspect:
(a) the licensee’s accounting records;
(b) the licensee’s register of shares;
(c) the licensee’s record of transactions;
(d) any other record kept by the licensee in the
course of its international banking business;
and
(e) the premises where the licensee carries on its
international banking business.
(2) In exercising the right of inspection under
subsection (1), the Inspector shall have a reasonable belief
that the action is required to carry out the Inspector’s
functions under this Act or as part of a regular on-site
inspection of the licensee.
30. Supply of information – (1) A licensee shall
provide the Inspector any information in respect of its
international banking business or any other matter as the
Minister or the Inspector may direct.
(2) In exercising the right to request information under
subsection (1), the Inspector or the Minister shall have a
reasonable belief that the action is required to carry out their
functions under this Act or as part of a regular on-site
inspection of the licensee.
31. Central Bank controls – A licensee or its auditor
shall furnish to the Central Bank such information regarding
its domestic banking business as the Central Bank may from
time to time direct.
International Banking Act 2005
25
32. Power of search – (1) A Judge or Registrar of the
Supreme Court who is satisfied by information on oath of
the Inspector or authorised person that:
(a) there is reasonable ground for suspecting that
an offence against this Act has been or is
being committed and that evidence of the
commission of the offence is to be found at
any premises, building or place or in any
vehicle, vessel or aircraft so specified; or
(b) any books, records, vouchers, documents,
cash or securities, that ought to have been
produced under section 5, 29 or 30 and have
not been produced, are to be found at any
such premises, building or place or in any
such vehicle, vessel or aircraft, –
may grant a search warrant authorising the Inspector or
authorised person named in the warrant at any time within
one month from the date of the warrant, to enter the
premises or building or place specified in the warrant or, as
the case may be, any premises upon which the vehicle,
vessel or aircraft so specified may be and to search the
premises, building or place or, as the case may be, any
vehicle, vessel or aircraft.
(2) The person authorised by the warrant to search any
premises or building or place or any vehicle, vessel or
aircraft may:
(a) search a person who is found in or whom the
authorised person has reasonable grounds to
believe to have recently left or to be about to
enter those premises or building or place or
that vehicle, vessel or aircraft, as the case
may be; and
(b) seize any books, records, vouchers,
documents, cash or securities found in the
possession of any such person or in such
premises or building or place or in such
vehicle, vessel or aircraft which the person
has reasonable grounds for believing ought to
have been produced under section 5, 29 or
30.
(3) Where by virtue of this section a person has any
power to enter any premises or building or place or a
vehicle, vessel or aircraft, the person and any police or other
person assisting may use force as is reasonably necessary for
the purpose of exercising that power.
International Banking Act 2005
26
(4) A search warrant shall be executed by day, unless
the warrant expressly authorises the execution thereof by
night.
(5) The person executing a search warrant shall have it
with him or her and to produce it if required to do so.
(6) A person who obstructs the Inspector or any other
person in the exercise of any powers conferred on the
Inspector under this section commits an offence.
(7) The Commissioner of Police shall provide the
Inspector or authorised person with such assistance as the
Inspector or authorised person requests concerning the
exercise of the Inspector’s or authorised person’s powers
under this section.
33. False or misleading information – A licensee or
any director or officer of a licensee who knowingly or
willfully supplies false or misleading information to the
Minister or the Inspector or any authorised person commits
an offence.
34. Official examinations – (1) The Minister
mayappoint one or more qualified persons to make
examinations, under conditions of confidentiality, of the
books and affairs of any licensee.
(2) The Minister may appoint one or more qualified
persons to make a special examination, under conditions of
confidentiality, of the books and affairs of any licensee:
(a) where the Minister has reason to believe that
such licensee may be carrying on its business
in a manner detrimental to the interest of its
depositors and other creditors or may have
insufficient assets to cover its liabilities to the
public or may be, either in Samoa or
elsewhere, contravening any of the provisions
of the Act; or
(b) if the licensee suspends payment or informs
the Minister of its intention to do so.
(3) A licensee, of whom an examination has been
ordered under subsection (1) or (2), shall:
(a) produce to the person or persons appointed at
such times and in such places as such person
or persons may specify (being times and
places which, in the opinion of such person or
persons, would not be unreasonably
detrimental to the conduct of the normal daily
International Banking Act 2005
27
business of the licensee) all books, accounts
and documents in the possession or custody
of such licensee or of which it is entitled to
possession or custody relating to its business;
and
(b) give, within such times as such person or persons
may specify, such oral information
concerning the licensee’s business as may be
required.
(4) As soon as may be practicable after the conclusion
of an examination under this section, the person or persons
appointed to carry out the examination:
(a) shall submit a full report on such examination to
the Minister who may forward a copy thereof
to the head office of the licensee concerned;
and
(b) depending upon the contents of the report, may
take such action as the Minister deems fit
under the provisions of the Act or other laws
of Samoa.
(5) The Minister may order that all expenses of and
incidental to an examination under this section shall be paid
by the licensee examined.
(6) A person commits an offence and is liable on
conviction to a fine not exceeding $1,000 for every day on
which the offence has continued who:
(a) refuses or fails or neglects to produce any
book, account, document or information
required under subsection (3); or
(b) knowingly produces any book, account,
document or information required under
subsection (3) which is false or misleading in
any material particular.
35. Annual audit – (1) A licensee shall appoint
annually an approved auditor whose duties shall be to make
to the shareholders of that licensee a report upon the annual
balance sheet and accounts, and in every such report the
auditor shall state:
(a) whether, in the auditor’s opinion—
(i) proper books of account have been kept;
and
(ii) where applicable proper returns adequate
for the audit have been received from
branches not visited by the auditor; and
International Banking Act 2005
28
(b) whether—
(i) the balance sheet and accounts are in
agreement with the company’s books and
(ii) the balance sheet is full and fair and
properly drawn up; and the balance sheet
exhibits a true and fair statement of the
licensee’s affairs; and
(c) in any case in which the auditor has called for
explanation or information from the officers
or agents of the licensee, whether this is
satisfactory,–
and the audit shall be prepared in accordance with
internationally accepted accounting standards.
(2) In addition, the auditor shall report upon whether the
licensee is carrying on business in accordance with the terms
of its licence in so far as those terms relate to financial or
accounting matters and shall include verification of
compliance with the undertaking given by a licensee under
section 10(2)(b).
(3) The auditor shall also report whether, in the
auditor’s opinion, the quarterly or half-yearly returns filed
by the licensee have been completed correctly in accordance
with the reporting instructions and accurately reflect the
management accounts as prepared by the licensee.
(4) The report of an approved auditor under subsection
(1) shall be read together with the report of the directors of
the licensee at the annual meeting of shareholders and copies
of that report shall be sent to the Inspector, together with
copies of the balance sheet and profit and loss account, and
if any default is made in complying with the requirements of
this subsection, the licensee concerned commits an offence
and is liable on conviction to a fine not exceeding 5,000
dollars.
(5) If a licensee fails to appoint an approved auditor
under subsection (1) or, at any time, fails to fill a vacancy
for such auditor the Inspector may appoint an approved
auditor and shall fix the remuneration to be paid by that
licensee to such auditor.
(6) The duties and powers conferred on examiners
appointed under section 34(3) are conferred also in relation
to approved auditors.
(7) No person having an interest in any licensee,
otherwise than as a depositor, and no director, officer or
agent of any licensee shall be eligible for appointment as an
approved auditor for that licensee; and any person appointed
International Banking Act 2005
29
as such auditor to any licensee who subsequently acquires
such interest or becomes a director, officer or agent of that
licensee shall cease to be such auditor.
(8) Where, in the case of a licensee incorporated outside
Samoa, the auditor is satisfied that a report upon the annual
balance sheet and accounts of such licensee has been duly
made by an auditor in accordance with the law of the
country in which such licensee is incorporated, and a copy
of such report, together with the report of the directors of
such licensee, is sent to the Inspector, the Inspector may by
notice in writing exempt the licensee from the provisions of
this section.
36. Duties of auditor – (1) In carrying out an audit of
the accounts of a licensee, the auditor, where necessary,
shall enlarge or extend the scope of the audit of the business
and affairs of the licensee and carry out any other
examination or establish any procedure so as to give a true
and fair view of the licensee’s financial condition and results
of its operations, and any procedure or action undertaken
under this subsection is to be disclosed in the auditor’s
report.
(2) The auditor shall report immediately to the
Inspector, without notifying the licensee in any way, of any
information relating to the affairs of a licensee obtained in
the course of an audit, if the auditor is of the opinion that:
(a) the licensee is insolvent or is likely to become
insolvent or is likely to be unable to meet its
obligations or is in serious financial
difficulties;
(b) a criminal offence involving fraud, dishonesty
or money laundering has been committed;
(c) serious irregularities have occurred, including
irregularities that jeopardise the interest of
depositors and creditors;
(d) losses have been incurred which substantially
reduce the capital funds of the licensee; or
(e) the auditor is unable to confirm that the
claims of creditors are still covered by the
licensee’s assets.
(3) The auditor may be required by the Inspector to
discuss the audit directly with the Inspector or be asked to
provide additional information regarding the audit.
(4) The Inspector, may, by notice in writing to a
licensee, require it to supply the Inspector with a report,
International Banking Act 2005
30
prepared by its auditor on such matters as the Inspector may
determine, which may include an opinion on asset quality,
adequacy of provisions for losses and the adequacy of the
accounting and control systems.
(5) No civil, criminal or disciplinary proceedings shall
lie against any auditor arising from the disclosure in good
faith of information to the Inspector under this section.
37. Preservation of confidentiality – (1) Subject to
this section and except for the purpose of the performance or
exercise of their duties or functions under this Act or other
law or when lawfully required to do so by any court of
competent jurisdiction within Samoa, the Minister, the
Inspector and any officials or officers thereof, including any
authorised person and any person appointed under section
34, 43 or 44, shall not disclose any information relating to
any application by any person under the provisions of this
Act or to the affairs of a licensee or of any customer of a
licensee which the Minister, the Inspector or other person, as
the case may be, has acquired in the performance or exercise
of such duties or functions under this Act.
(2) Subsection (1) does not apply to a disclosure by the
Inspector:
(a) necessary for the effective regulation of a
licensee;
(b) in respect of the affairs of a licensee or a
customer of a licensee with the authority of
the licensee or the customer of the licensee
which has been voluntarily given, as the case
may be;
(c) where the information is already in the public
domain;
(d) where the Inspector believes that a suspicious
transaction was not reported as required
under the Money Laundering Prevention Act
2000; or
(e) where the Inspector believes that a transaction
may be associated with an offence under the
Counter Terrorism Act 2014.
(3) The Inspector may disclose to a foreign or domestic
banking supervisory authority, or a domestic or foreign
agency responsible for the prevention and suppression of
terrorism, or the Money Laundering Authority or any other
like regulatory authority information about the licensee,
provided that:
International Banking Act 2005
31
(a) the Inspector is satisfied that the intended
recipient agency or authority is subject to
adequate legal restrictions on disclosures
which shall include the provision of an
appropriate undertaking on confidentiality;
and
(b) the information is required for the purposes of
banking supervision, or the prevention and
suppression of terrorism or the enforcement
of the Money Laundering Prevention Act
2000 or any other like law only and is not
related directly or indirectly to the
imposition, calculation or collection of taxes
or the enforcement of exchange control
regulations.
(4) A person who commits an offence under this section
is liable upon conviction to a fine not exceeding 50,000
dollars or to imprisonment for a term not exceeding 5 years,
or both.
38. Breach of confidentiality – (1) Except as required
by or provided for under the laws of Samoa, a person
commits an offence who:
(a) divulges any information, in Samoa or
elsewhere, which the person has become
aware of in the person’s capacity as an
officer, employee, or authorised agent of a
licensee, or as an officer or employee of an
approved auditor, in relation to—
(i) any international banking business
transacted in or from within Samoa;
(ii) the transfer of money and property into
or out of Samoa in the course of any
international banking business; or
(iii) the account of any person with a licensee
or any item of such an account or the
fact of any person having, or having had
such an account; or
(b) attempts to induce any other person to breach
professional confidentiality in relation to any
such matters.
(2) Despite subsection (1), it is not an offence under this
section to divulge the information referred to in subsection
(1)(a):
International Banking Act 2005
32
(a) to the Inspector under section 5 or if directed
to do so by the Minister or the Inspector
under section 30;
(b) to the person on whose behalf the
international banking business is being
carried out;
(c) in Samoa, to an officer or employee of the
same licensee in the performance of the
person’s duties as an officer or employee;
(d) to an officer or employee of a bank or other
such financial institution outside Samoa, if all
the persons concerned in the banking
business or in whose name the account
stands, consent in writing to doing so;
(e) to an officer or employee of the licensee
outside Samoa, so long as the names of the
persons concerned in the banking business
and any information which might identify
them and the names in which accounts stand
and the balance therein, are not divulged;
(f) with the prior written approval of the
Minister, to the Government of or to a public
officer of any other country, provided such
information is used only as part of—
(i) an amount representing the total assets
of the licensee in Samoa; or
(ii) an amount representing the total sum of
money transferred to Samoa from that
country or from Samoa to that country
and the currencies in which such money
was transferred, provided that the
amount of individual banking
transactions, the names in which
accounts stand, and the balances therein
are not divulged; or
(g) to the Inspector by the auditor or former
auditor of a licensee with respect to the
audited accounts or returns of the licensee.
(3) For the purposes of subsection, (2)(d) all the persons
concerned in the banking business or in whose names
accounts stand, are taken to have consented to an officer or
employee of a licensee divulging to an officer or employee
of a bank or other such financial institution outside Samoa
such information of the banking business being carried out
as is essential to the carrying out of that business or where
International Banking Act 2005
33
the request for information by the foreign financial
institution is under a statutory requirement binding on that
foreign financial institution, but the consent taken to have
been given under this subsection does not apply to any other
particulars.
(4) Nothing in this section prevents the Court from
requiring a person to give evidence or produce documents in
any proceedings in the Court of any facts relevant in those
proceedings that the person could otherwise be required to
give or produce.
(5) A person who commits an offence under this section
shall be liable upon conviction to a fine not exceeding
$50,000 or to imprisonment for a term not exceeding 5
years, or both.
39. Breach of confidentiality by officer or employee
deemed to be breach by licensee – (1) For the purposes of
section 38, an offence by an officer or employee of a
licensee or of an auditing company, as the case may be, or
by a person after termination of the person’s employment as
an officer or employee of a licensee or of an auditing
company, as the case may be, whether such offence occurs
in Samoa or elsewhere, shall be deemed also to be an
offence by that licensee or by that auditing company, as the
case may be.
(2) Despite subsection (1), an offence under section 38
by a person after termination of the official or employment
relationship with a licensee or an auditing company shall not
be deemed to be an offence by the licensee or by the
auditing company, as the case may be, if the licensee or the
auditing company can prove, on the balance of probabilities,
that it had taken all reasonable steps to prevent an offence by
the person.
PART 4
TAXATION
40. Profits and dividends – (1) Despite anything
contained in any other enactment:
(a) no income tax, nor any other direct or indirect
tax or impost, shall be levied in Samoa upon
the profits or gains of a licensee, or upon any
interest earned by a licensee, in respect of the
international banking business it does from
within Samoa; and
International Banking Act 2005
34
(b) no income tax, nor any other direct or indirect
tax or impost, shall be levied in Samoa in
respect of any dividends or earnings, or upon
any interest earned by a licensee, attributable
to the shares or securities of a licensee that
are beneficially owned by another licensee or
by an international company or a person who
is not a resident of Samoa; and
(c) no income tax, nor any other direct or indirect
tax or impost shall be levied in Samoa upon
any interest paid to a non-resident depositor
(other than interest paid to a trustee company
registered under the Trustee Companies Act
1988 in its own right which is taxable in
Samoa) by a licensee.
(2) The exemptions from taxation granted under
subsection (1)(a) and (b) do not apply to the domestic
banking business only of any licensee that has been granted
approval under section 12 to carry on domestic banking
business.
41. Exemption from stamp duty – (1) Bills of
exchange and promissory notes payable on demand and any
other document, instrument or certificate executed by, for or
in connection with an international bank licensed under this
Act and relating to international banking business are
exempted from stamp duty.
(2) A instrument chargeable with duty executed by or
for a licensee, and not exempt under subsection (1), may be
presented for stamping within an extended period of 4
months after and exclusive of the day of execution thereof
(or in the case of an instrument executed out of Samoa,
within 4 months after it has first been received in Samoa)
without penalty.
(3) The exemption from stamp duty granted under
subsection (1) does not apply to the domestic banking
business only of any licensee that has been granted approval
under section 12 to carry on domestic banking business.
42. Exemption from currency and exchange control
– (1) International banking business conducted by a licence
under this Act is exempted from any currency and exchange
control restrictions or regulations.
(2) No foreign exchange levy shall be imposed or be
payable in respect of international banking business
International Banking Act 2005
35
conducted by and in accordance with a licence under this
Act.
(3) The exemptions from currency and exchange
controls and foreign exchange levies granted under
subsections (1) and (2) do not apply to the domestic banking
business only of any licensee that has been granted approval
under section 12 to carry on domestic banking business.
PART 5
SUSPENSION, CANCELLATION AND OTHER
ENFORCEMENT OF LICENCE CONDITIONS
43. Enforcement of examination findings – (1) If, in
the opinion of the Minister, an examination under section 34
shows that the licensee concerned is carrying on its business
in a manner detrimental to the public interest or of its
depositors and other creditors, or has insufficient assets to
cover its liabilities to the public, or is, either in Samoa or
elsewhere, contravening any of the provisions of this Act,
the Minister may take such one or more of the following
steps as may seem to the Minister necessary:
(a) require the licensee forthwith to take such
measures as the Minister may consider
necessary in relation to its business;
(b) impose conditions, or further conditions, as the
case may be, upon the licence and may
amend or revoke any such condition;
(c) require the removal and replacement of any
director or officer of the licensee;
(d) appoint a person who, in the Minister’s opinion,
has had adequate training and experience to
advise the licensee in the proper conduct of
its business and fix the remuneration to be
paid by the licensee to such person;
(e) appoint a person to assume control of the
licensee’s affairs who shall mutatis mutandis
have all the powers of a person appointed as
receiver or manager of a business under the
Receivership Act 2006 and fix the
remuneration to be paid by the licensee to
such person; or
(f) unless the Minister is satisfied that the licensee
is taking adequate measures to put its affairs
in order, make an order under section 44
cancelling the licence.
International Banking Act 2005
36
(2) A licensee who refuses or fails to take any measure
required by the Minister under subsection (1), commits an
offence and is liable on conviction to a fine not exceeding
500 dollars in respect of every day during which the offence
continues.
(3) A person who knowingly and willfully refuses or
fails to take any measure required by the Minister under
subsection (1) commits an offence and is liable on
conviction to a fine not exceeding 1,000 dollars.
44. Powers of the Minister – (1) Whenever the
Minister is of the opinion that a licensee:
(a) is carrying on business in a manner detrimental
to the public interest or detrimental to the
interest of the depositors or other creditors of
the licensee; or
(b) is or appears likely to become unable to meet its
obligations as they fall due; or
(c) has failed to comply with the terms and
conditions of its licence; or
(d) has failed to comply with any directive or
regulatory code issued by the Minister under
this Act; or
(e) is in breach of any duty or obligation imposed
upon it by this Act or commits an offence
under this Act, –
the Minister may forthwith take one or more of the
following actions, as may seem necessary to Minister—
(i) require the licensee forthwith to take
such measures as the Minister may
consider necessary in relation to its
business;
(ii) impose conditions, or further
conditions, as the case may be, upon the
licence and may amend or revoke any
such condition;
(iii) require the removal and replacement of
any director or officer of the licensee;
(iv) appoint a person who, in the Minister’s
opinion, has had adequate training and
experience to advise the licensee in the
proper conduct of its business and fix
the remuneration to be paid by the
licensee to such person;
International Banking Act 2005
37
(v) appoint a person to assume control of
the licensee’s affairs who shall mutatis
mutandis have all the powers of a
person appointed as receiver or
manager of a business under the
Companies Act 1955 and fix the
remuneration to be paid by the licensee
to such person;
(vi) present a petition to the Court for the
winding up of the licensee; or
(vii) cancel the licence.
(2) A person appointed under subsection (1)(e)(iv) and
(v) or whose appointment has been extended under
subsection (3)(b) shall at the person’s discretion and in any
case within 3 months of the date of the person’s appointment
or of the extension of the person’s appointment (as the case
may be), prepare and provide a report to the Minister and the
Inspector of the affairs of the licensee and recommendations
thereon.
(3) On receipt of a report under subsection (2), the
Minister may:
(a) revoke the appointment of the person
appointed under of subsection (1)(e) (iv) or
(v);
(b) extend the period of the person’s
appointment;
(c) subject to such conditions as the Minister
may impose, allow the licensee to reorganise
its affairs in a manner approved by the
Minister; or
(d) cancel the licence.
(4) Despite any other provisions in this section, the
Minister may cancel a licence if the licensee:
(a) has ceased to carry on international banking
business or does not within six months after
the issuance of its licence commence
international banking business; or
(b) goes into liquidation or is wound up or
otherwise dissolved.
(5) The Inspector shall give notice in writing to the
licensee and, through such means as the Inspector deems fit,
to creditors, depositors, shareholders and employees of the
licensee and relevant banking authorities elsewhere of a
cancellation of the licence or a refusal to grant renewal of a
licence under section 16(3).
International Banking Act 2005
38
45. Minister may apply to the Court – The Minister
may, in any case in which a licensee or a person who has at
any time been a licensee is being wound up voluntarily,
apply to the Court if the Minister considers that the winding
up is not being conducted in the best interest of its
depositors or other creditors, and the Court shall make such
order as it shall consider appropriate.
46. Surrender of licence – (1) A licensee who has
ceased to carry on the business in respect of which the
licence was granted may apply to the Minister to surrender
its licence if it:
(a) has ceased to carry on such business, and
produces evidence that it has repaid all
deposits held by it and has transferred all
trust assets held or administered by it; or
(b) is being wound up voluntarily and produces
evidence that it is solvent and able forthwith
to repay all deposits held by it and all its
other creditors and has transferred all trust
assets held or administered by it, –
and the Minister may thereupon approve the surrender.
(2) In the case of an application under subsection (1)(b),
the Minister may apply to the Court for the licensee to be
wound up by the Court, and on the making of such an order
the provisions of the International Companies Act 1988
relating to the winding up of a company by that Court shall
mutatis mutandis apply.
47. Appeals – (1) Subject to subsection (2), a person
affected adversely may, within 21 days of the date of the
decision appealed from, appeal to the Court, from:
(a) any decision not to renew a licence under
section 16;
(b) any decision to cancel a licence under section
44(1), (3) or (4);
(c) any decision by the Minister to enforce
examination findings under section 43(1); or
(d) any decision by the Minister to take any of
the actions under section 44(1):
PROVIDED THATany person affected adversely by a
decision of the Minister referred to in paragraph (a), (b), (c),
or (d) may, upon notice to the Minister, apply to the Court
for leave to extend the time within which the notice of
International Banking Act 2005
39
appeal must be filed. The Court, upon hearing such
application, may extend the time prescribed by this section,
as it deems fit.
(2) The only grounds for an appeal under this section
shall be that the decision was ultra vires or was an
unreasonable exercise of the Minister’s powers or was in
breach of the Constitution.
(3) In determining any appeal under this section the
Court may, if it thinks fit:
(a) exercise any of the powers conferred on the
Minister by this Part; or
(b) cancel or amend any decision to which the
appeal relates; or
(c) confirm any such decision.
(4) The decision of the Court on appeal proceeding
brought before it under this section shall be final and
conclusive.
(5) In determining an appeal under this section the
Court shall not have the power to award damages or costs
against the Minister or the Inspector or the Government.
(6) An appeal against a decision of the Minister shall
not have the effect of suspending the execution of such a
decision.
PART 6
MISCELLANEOUS
48. Protection of the terms “bank” and
“international bank” – (1) Except as provided by law or
with the approval of the Minister in writing, no person, other
than the holder of a valid international banking licence
issued under this Act, shall:
(a) use the word ―bank‖ or ―international bank‖
or any of its derivatives in any language in
the description or title under which such
person is carrying on international banking
business from within Samoa; or
(b) make or continue to make any representation
in any billhead, printed form, letter, paper,
notice, advertisement or in any other manner
whatsoever that such person is carrying on
international banking business from within
Samoa.
(2) A person who contravenes this section commits an
offence.
International Banking Act 2005
40
(3) In this section, ―printed form‖ includes a form of
which copies are produced by cyclostyling, or by any
duplicating or reproduction process, whether letterpress,
photographic, lithographic multigraphic, or stenciling, or
any other process.
49. General penalty for offence – A person who is
convicted of an offence against this Act and any regulations
issued hereunder for which no penalty is provided, otherwise
than in this section, is liable upon conviction to
imprisonment for a term not exceeding 1 year or to a fine
not exceeding 10,000 dollars or to both, and, if the offence is
a continuing one, to a further fine not exceeding 500 dollars
for every day on which the offence has continued.
50. Application of International Companies Act to
winding up – (1) Part 9 of the International Companies Act
1988, so far as it is applicable and with the necessary
modifications, applies with respect to the winding-up of
companies licensed under this Act.
(2) The Court has jurisdiction in the winding-up.
51. Civil remedies not affected – Nothing in this Act
affects any civil remedy that a person may have against a
licensee in respect of any matter.
52. International banking not an authorised trustee
investment – A deposit or lodgment of any kind or any
other form of security arrangement with an international
bank licensed under this Act shall not constitute an
authorised investment for co-operative societies, credit
unions, industrial and provident societies, and trustees, other
than a trustee company licensed under the Trustee
Companies Act 1988 or except where otherwise expressly
authorised under the trust settlement or by other Act.
53. No other business licence required – Except as
provided by this Act, no other business licence shall be
required to operate as an international bank from within
Samoa.
54. Choice of measures – A holder of a valid licence
under this Act may conduct its international banking
business (including its books and accounts relating thereto)
International Banking Act 2005
41
in accordance with its licence without restriction as to the
measurement system to be adopted or as to decimalization.
55. Regulations – The Head of State, acting on the
advice of Cabinet, may make regulations prescribing all
matters and things required or authorised by this Act to be
prescribed or provided, or which are necessary or convenient
to be prescribed or provided, for the carrying out of, or the
giving full effect to, the provisions of the Act and its due
administration including, but not limited to, all or any of the
following particular purposes:
(a) prescribing forms to be used for the purposes
of this Act and the matters to be specified in
such forms;
(b) prescribing forms of application and other
notices under this Act;
(c) fixing the fees and charges to be paid under
this Act and the penalties for breaches
thereunder, or delegating the power of fixing
such fees, charges and penalties to prescribed
persons or bodies;
(d) empowering the employment of non-citizens
and non-residents required to provide
efficient services for the due administration
of this Act, subject to and on the following
conditions—
(i) any person employed as a barrister or a
solicitor must obtain a practicing
certificate under the Law Practitioners Act
1976;
(ii) any person employed as a public
accountant must obtain a certificate of
public practice under the Public
Accountants Act 1984;
(e) delegating to the Minister the function of
granting such duty and other concessions as
shall be desirable to facilitate the objectives
of the Act.
56. Immunity – (1) No action shall lie against the
Government or any statutory body or authority of Samoa,
the Minister, the Inspector or any person acting under any
authority conferred by the Minister or the Inspector, as the
case may be, in respect of any act or matter done or omitted
to be done in good faith in the exercise or purported exercise
International Banking Act 2005
42
of their respective functions conferred by or under this Act
or any regulations made thereunder.
(2) The legal costs of defending any action instituted
against the Minister, the Inspector or any person acting
under any authority conferred by the Minister or the
Inspector shall be borne by the Government.
57. Procedure where none laid down – In the event
that any act or step is required or permitted to be done under
this Act, and no form is prescribed or procedure laid down
in this Act or Regulations for doing the same, the Inspector
may in response to application made to the Inspector, or on
the Inspector’s own motion, give directions as to the manner
in which the same may be done, and any act or step done or
taken in accordance with the Inspector’s directions shall be a
valid performance of such act or step.
58. English the authentic text – (1) A document filed
with the Inspector, and all records and accounts required to
be kept under this Act shall be in the English language.
(2) Where a document is not in the English language it
shall be accompanied by an authentic English translation;
and in the event of any conflict in meaning between the
foreign language and the English versions, the English
version shall prevail.
59. Repeal of Off-Shore Banking Act 1988 – The
Off-Shore Banking Act 1988 is repealed.
60. Transitional – (1) Any licence, authority, approval
or exemption granted under the repealed Act that is in force
immediately before the commencement date of this Act -
(a) shall continue to have effect after the
commencement date as if granted under this
Act; and
(b) in the case of a licence or grant for a specific
period, shall remain in force for so much of
that period as falls after the commencement
date.
(2) Where prior to the commencement of this Act, an
application, request or petition had been made to the
Minister or the Inspector of Offshore Banks, in respect of
any licence, permit, authorisation or approval required to be
given by the Minister or the Inspector, as the case may be,
under the Offshore Banking Act 1988, and which has not
International Banking Act 2005
43
been completed or otherwise determined, such application,
request or petition shall continue to be dealt with and
completed or otherwise determined in all respects as if this
Act had not been enacted.
61. Consequential amendments – The enactments
specified in the Schedule to this Act are amended or
modified in the manner indicated in that Schedule.
SCHEDULE (Section 61)
Section 58 Enactments Amended
Enactment Extent of Amendment or Repeal
Shops Ordinance 1961 By amending section 6A to delete the
words ―an off-shore banking
business licensed under the Off-shore
Banking Act 1967‖ and substituting
the words ―an international bank
licensed under the International
Banking Act 2005‖.
Post Office Act 1972 By deleting 17(2)(j) and substituting
the following:
―(j) Letters by, for or in respect of an
international bank licensed under the
International Banking Act 2005, an
international insurance company
licensed under the International
Insurance Act 1988, an international
company registered under the
International Companies Act 1988, a
trustee company licensed under the
Trustee Companies Act 1988 or an
international partnership or limited
partnership registered under the
International Partnership and Limited
Partnership Act 1998;‖
Bills of Exchange Act 1976 By amending section 73(1) by
deleting the words ―including an off-
shore bank licensed under the Off-
shore Banking Act 1988‖ and
substituting the words ―including an
international bank licensed under the
International Banking Act 2005‖.
Law Practitioners Act 1976 By amending the proviso in section
2(2) by deleting the words ―with off-
shore banking or the giving of advice
International Banking Act 2005
44
on off-shore banking matters‖ and
substituting the words ―with an
international bank licensed under the
International Banking Act 2005 or
the giving of advice on international
banking matters‖.
Public Accountants Act 1984 By amending section 3(2)(d) by
deleting the words ―of an off-shore
banking business licensed under the
Offshore Banking Act 1988‖ and
substituting the words ―of an
international bank licensed under the
International Banking Act 2005‖.
International Companies Act 1988 By amending section 40 by deleting
the words ―Off-shore Banking Act
1988‖ and substituting the words
―International Insurance Act 1988 or
the International Banking Act 2005‖.
By amending section 54A(10)(a) by
deleting the words ―Off-shore
Banking Act‖ and substituting the
words ―International Banking Act
2005‖.
By amending section 227(4)(i) by
deleting the words ―Offshore
Banking Act 1988‖ and substituting
the words ―International Banking Act
2005‖.
By amending section 249(2)(a) and
(b) by inserting after the words
―every international company and
every foreign company registered
under Part X‖ the words ―other than
an international bank licensed under
the International Banking Act 2005‖.
By amending section 249(2)(c)(ii) by
deleting the words ―Off-shore
Banking Act 1988‖ and substituting
the words ―International Banking Act
2005‖.
By amending section 249(3)(a), (b),
(c) and (d) by inserting after the
words ―by an international company
or a foreign company registered
under Part X‖ the words ―other than
International Banking Act 2005
45
an international bank licensed under
the International Banking Act 2005‖.
By amending section 249(4)(a) by
inserting before the words ―carry on
business‖ the words ―unless it is an
international bank licensed to carry
on domestic banking business under
the International Banking Act 2005,‖
By amending section 249(5)(e) by
deleting all the words following the
words ―are prepared or maintains‖
and substituting the words ―or, being
a licensee under the International
Banking Act 2005, from where it
maintains and operates its business.‖
Financial Institutions Act 1996 By amending section 28 by deleting
paragraph (c) and substituting the
following:
―(c) Any company licensed under the
International Banking Act 2005 or
any act replacing that Act, but only
in respect of those companies that
have not commenced domestic
banking business, pursuant to
approval granted under the said Act;‖
Money Laundering Prevention By amending section 13(2) by
Act 2000 inserting after the words ―the
licence‖ the words ―or registration‖
and by deleting the words ―the
Offshore Banking Act 1988 and the
Financial Institutions Act 1996‖ and
substituting the words ―any Act.‖
By amending paragraph 1 of
Schedule 1 by deleting the words
―Off Shore Banking Act 1988‖ and
substituting the words ―International
Banking Act 2005.‖
By deleting paragraph 2 of Schedule
1 and substituting the following:
―2. ―International banking business‖
as defined in the International
Banking Act 2005‖
International Banking Act 2005
46
Foreign Investment Act 2000 By amending the definition of
―foreign investment‖ in subsection
(2) of section 2 by inserting after the
words ―Business Licences Act 1998‖
the following sentence:
―Provided that the provisions of this
Act shall not apply to trustee
companies licensed under the Trustee
Companies Act 1988, international
companies or foreign companies
registered under the International
Companies Act 1988, international
insurance companies licensed under
the International Insurance Act 1988
or international banks licensed under
the International Banking Act 2005,
or any successor legislation to the
above Acts.‖
REVISION NOTES 2008 – 2015
This is the official version of this Act as at 31 December 2015.
This Act has been revised by the Legislative Drafting Division from
2008 – 2015 respectively under the authority of the Attorney General
given under the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Amendments have been made to conform to modern drafting
styles and to use modern language as applied in the laws of
Samoa.
(b) Insertion of the commencement date.
(c) Other minor editing has been done in accordance with the
lawful powers of the Attorney General.
(i) ―Every‖ and ―any‖ changed to ―a‖
(ii) ―shall be‖ changed to ―is‖ and ―shall be deemed‖
changed to ―is taken‖
(iii) ―shall have‖ changed to ―has‖
(iv) ―shall be guilty‖ changed to ―commits‖
(v) ―notwithstanding‖ changed to ―despite‖
(vi) ―pursuant to‖ changed to ―under‖
(vii) ―it shall be lawful‖ changed to ―may‖
(viii) ―it shall be the duty‖ changed to ―shall‖
(ix) Numbers in words changed to figures
(x) ―hereby‖ and ―from time to time‖ (or ―at any time‖ or
―at all times‖) removed
(xi) ―under the hand of‖ changed to ―signed by‖
(xii) Section 35 paragraphed.
(d) Reference to the ―Central Bank of Samoa Act 1984‖ substituted
with ―Central Bank of Samoa Act 2015‖.
(e) Amendments have been made to conform to drafting format.
(f) Part numbering changed to decimal
International Banking Act 2005
47
There were no amendments made to this Act since the publication of the
Consolidated and Revised Statutes of Samoa 2007.
Tuatagaloa Aumua Ming Leung Wai
Attorney General of Samoa
This Act is administered by
the Central Bank of Samoa